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War and Peace in Refugee Law Jurisprudence

Published online by Cambridge University Press:  27 February 2017

Hugo Storey  and
Rebecca Wallace
Hugo Storey
Affiliation:
Butterworths Immigration Law Service
Rebecca Wallace
Affiliation:
Napier University, Edinburgh
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American Journal of International Law , Volume 95 , Issue 2 , April 2001 , pp. 349 - 366
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Copyright © American Society of International Law 2001

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References

1 That refugee law often uses the terms “civil war” and “armed conflict” interchangeably indicates its lack of attention to international law codifications on the basis of the latter term. A more precise classification is given in the body of this paper.

2 July 28, 1951, 1954 UKTS No. 39 (Cmd. 9171), 189 UNTS 150.

3 UNHCR, The State of the World’s Refugees: in Search of Solutions 25 (1995).

4 Refugee App. No. 71,462/99, para. [30] (NZ Sept. 27, 1999) [hereinafter App. 71,462/99], at <http://www.refugee.org.nz/rsaa/text/docs/71462-99.htm>. No names are attached to decisions of the New Zealand authority.

5 See, e.g., Hathaway, James, The Law of Refugee Status (1991).Google Scholar

6 In re S-P, Interim Decision 3287(B.IA. 1996), at <http://www.usdoj.gov>; Adan v. Sec’y of State for Home Dep’t, [1999] 1 A.C.293 (H.L.); Kibitiv. Sec’y of State for Home Dep’t, 20001mm. App. Rep. 594 (C.A.); Minister for Immigration & Multicultural Affairs v. Abdi, [1999] 162 AL.R. 105 (Fed. Ct. Austl.); App. 71,462/99, supra note 4; Shysta-Ameer Ali v. Minister of Citizenship & Immigration, No. A-772–96, 1999 Fed. Ct. App. LEXIS 11 (Fed. Ct. Can. Jan. 12, 1999).

7 See App. 71, 462/99, supra note 4, para. [29] (emphasizing “the need to provide a hopefully coherent exposition of the basic principles”).

8 We are indebted to the pioneering work done in this area by Suzanne, J. Egan, Civil War, Refugees and the Issue of “Singling out” in a State of Civil Unrest (Centre for Refugee Studies, 1991)Google Scholar; Aleinikoff, T. Alexander, The Meaning of “Persecution “ in U. S. Asylum Law, in Refugee Policy: Canada and the United States 292 (1991)Google Scholar; Michael, G. Heyman, Redefining Refugee: A Proposal for Relief for Victims of Civil Strife, 24 San Diego L. Rev. 449 (1987)Google Scholar; Kalin, Walter, Refugees and Civil Wars: Only a Matter of Interpretation, 3 Int’l L. Refugee L. 435, 450 (1991)Google Scholar; Matas, David, Innocent Victims of Civil War as Refugees, 22 Man. L. J. 1 (1993)Google Scholar; Mark, R. von Sternberg, Political Asylum and the Law of Internal Armed Conflict: Refugee Status, Human Rights and Humanitarian Law Concerns, 5 Int’l J. Refugee L. 153 (1993)Google Scholar; Mark, R. von Sternberg, The Plight of the Non-Combatant in Civil War and the New Criteria for Refugee Status, 9 id. at 170 (1997)Google Scholar [hereinafter von Sternberg, Plight of Non-Combatant]. The most comprehensive attempt to provide workable criteria, (Canadian) Immigration and Refugee Board, Civilian Non-Combatants Fearing Persecution in Civil War Situations (1996), at <http://www.irb.gc.ca/legal/guideline/civilian/index_e.stm>>Google Scholar [hereinafter Canadian Guidelines], is indebted to the lucid analysis of the relevance of IHL norms applicable to children in Guy Goodwin-Gill & Ilene Cohn, Child Soldiers: The Role of Children in Armed Conflicts (1994).

9 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267.

10 Unhcr, Handbook on Procedures and Criteria for Determining Refugee Status, UN Doc. HCR/lP/4/Eng/REV.2, para. 164 (ed. 1992) (1979) [hereinafter Unhcr Handbook].

11 Paragraph 164 is the opening paragraph of chapter V, Special Cases. See also id., para. 91.

12 Hathaway, supra note 5, at 185.

13 For example, Recommendation E of the Final Act of the United Nations conference of plenipotentiaries that adopted the 1951 Convention, UN Doc. A/CONF.2/108/Rev.l (1951), UN Sales No. 1951.IV.4, various General Assembly resolutions, documents dealing with the UNHCR’s “good offices” remit, and UNHCR position statements such as Note on International Protection, UN Doc. A/AC.96/660, at 6 (1985), which identifies the UNHCR’s extraconventional responsibilities for “persons who have fled their home country due to armed conflicts, internal turmoil and situations involving gross and systematic violations of human rights.” See further Guy, Goodwin-Gill, The Refugee in International Law 7-18 (2d ed. 1996)Google Scholar; Ramcharan, B. G., Humanitarian Good Offices in International Law (1983)Google Scholar Hyndman, J. & Viktor-Nylund, B., UNHCR and the Status of Prima Facie Refugees in Kenya, 10 Int’l L. Refugee L. 21, 32 (1998).Google Scholar

14 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Sept. 10, 1969, Art. 1(1), 1001 UNTS 45 (quoting the definition of refugee in the 1951 Convention); see also Cartagena Declaration on Refugees, Conclusion 111(3), OAS/Ser.L/V/II.66, doc.10, rev. l, at 190–93 (1984), at <http://www.unhcr.ch/refworld/legal/instruments/asylum/cart_eng.htm> (covering those in flight from “generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order”); Protection of Asylum Seekers in Situations of Large-Scale Influx, Exec. Comm. of the High Commissioner’s Programme No. 22 (XXXII) (1981).

15 Convention on the Specific Aspects of Refugee Problems in Africa, supra note 14, Art. 1(2).

16 Isav. Sec’y of State (Canada), [1995] 28 Imm. L.R. (2d) 68, para. [8] (Fed. Ct).

17 Adan, [1998] 2 W.L.R. 702 (H.L.).

18 Canadian Guidelines, supra note 8; see also von Sternberg, Plight of Non-Combatant, supra note 8.

19 Salibian v. Minister of Employment & Immigration, [1990] 3 F.C. 250, 258.

20 Henkel, Joachim, Refugees from Civil War and Other Internal Armed Conflicts, in Who is a Refugee? 17, 19 (Care, G. & Storey, H. eds., 1995).Google Scholar

21 Isa, supra note 16, at 72.

22 Adan, supra note 6, at 310B, 712B, 462E, 302C, 704H, 455F.

23 Id. at 311B, 713B, 463E.

24 Abdi, supra note 6, para. [39]; see also Murugasu v. Minister for Immigration & Ethnic Affairs (Fed. Ct. Austl. July 28,1987) (Wilcox, j . ) , cited in Fong Hoi Tjhia v. Minister for Immigration & Multicultural Affairs, No. 135 of 1999 (Fed. Ct. Ausd. Aug. 24, 1999) (Tamberlin, J.), at LEXIS, Australian Library, Unreported Judgments File.

25 App. 71,462/99, supra note 4, para. [52].

26 Salibian, supra note 19.

27 Canadian Guidelines, supra note 8.

28 See the more recent case of Kibiti, supra note 6.

29 Lord Hoffmann in Islam v. Sec’y of State for Home Dep’t, [1999] 2 A.C. 629 (H.L.).

50 Hathaway, supra note 5, at 186-87 (quoting Elias Iskandar Ishac, Can. Imm. App. Bd. Dec. M77-1040 (Apr. 25, 1977)).

31 Von Sternberg, Plight of Non-Combatant, supra note 8.

32 The court itself acknowledged this in Abdi, supra note 6, para. [41 ]. The court’s perception of the country conditions in Somalia accorded more with the findings, inter alia, of the Committee Against Torture, as expressed in Elmi v. Australia, Communication No. 120/1998, UN Doc. CAT/C/22/D/120/1998 (May 14,1999). It should be noted that the issue before the New Zealand Authority in Appeal 71,462/99 concerned a Tamil from Sri Lanka. In Adan the Somali claimant and his family were granted exceptional leave to remain in the United Kingdom on humanitarian grounds.

33 Hathaway, supra note 5, at 104–05.

34 See Shearer, I. A., Starke’s International Law 499 (11 th ed. 1994)Google Scholar; Refugee Law in Context: The Exclusion Clause 37–38 (Peter, J. van Krieken ed., 1999)Google Scholar; McDonald, Avril, Introduction to International Humanitarian Law and the Qualification of Armed Conflicts, in id. at 79.Google Scholar

35 Prosecutor v. Tadic, Appeal on Jurisdiction, No. IT-94-1-AR-72 (Oct. 2,1995); see also Prosecutor v. Tadic, Sentencing judgment, No. IT-94-1-T (Nov. 11, 1999), 39 ILM 117 (2000).

36 Prosecutor v. Akayesu, Judgment, No. ICTR-96-4 (Sept. 2, 1998).

37 In re Medina, 19 I. & N. Dec. 734 (1988) (since qualified, however, in In reS-P, supra note 6). See further von Sternberg, Plight of Non-Combatant, supra note 8, at 171.

38 Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 1340–41 (Sandoz, Yves, Swinarski, Christophe, & Zimmermann, Bruno eds., 1987).Google Scholar

39 For an IHRL approach to civil-war claims, see Kalin, supra note 8, at 450.

40 For example, the case law of the Human Rights Committee under the International Covenant on Civil and Political Rights and the Inter-American Commission and Court of Human Rights under the American Convention on Human Rights. In the European context, the leading cases concerned have mainly concerned Turkey. See, e.g., Akdivar & Others v. Turkey, 23 Eur. H.R. Rep.143 (1977). Decisions of the European Court of Human Rights are available online at <http://www.echr.coe.int/eng>.

41 See Convention on the Rights of the Child, Nov. 20,1989, Art. 38(1), 1577 UNTS 3,28 ILM 1448,1468 (1989) (providing that “States Parties undertake to respect and ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child”); see also id., Art. 38(4).

42 Juan Carlos Abella, Case 11.137, OEA/ser.L/V/II.95, doc.7 rev., at 271 (Inter-Am. C.H.R. 1997), at <http://heiwww.unige.ch/humanrts/cases/1997/argentina55-97a.html> [hereinafter Tablada].

43 Greenwood, Christopher, Scope of Application of Humanitarian Law, in Handbook of Humanitarian Law in Armed Conflicts 39 (Fleck, C. Dieter ed., 1995).Google Scholar

44 Goodwin-Gill & Cohn, supra note 8, at 56. This difference between the two legal regimes has been considerably reduced by developments in human rights case law. See, e.g., Ahmed v. Austria, 24 Eur. H.R. Rep. 278 (1996).

45 As was recognized by MacGuigan, J., in the Canadian case of an Iranian paramedic during the Iran-Iraq war. Zolfagharkhani v. Canada, [1993] 3 F.C. 540, 549.

46 On nonderogable peremptory norms, see Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 35, 1155 UNTS 331. See further Meron, Theodor, Human Rights and Humanitarian Norms as Customary Law (1989).Google Scholar

47 Joan, M. Fitzpatrick, Human Rights in Crisis (1994)Google Scholar Oraa, Jaime, Human Rights in States of Emergency in International Law (1992)Google Scholar; Nicole Questiaux, Study of the Implications for Human Rights of Recent Developments Concerning Situations Known as States of Siege or Emergency, UN Doc. E/CN.4/Sub.2/1982/15, and her final report, UN Doc. E/CN.4/Sub.2/1997/19.

48 Regarding assessment of whether violations of human rights constitute persecution in states of emergency, see Hathaway, supra note 5, at 110.

49 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, Art. 13, 1125 UNTS 609 [hereinafter Protocol II]; see also Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, Art. 130, 6 UST 3217, 75 UNTS 85 [hereinafter Geneva Convention II]; Convention elative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 147, 6 UST 3516, 75 UNTS 287 [hereinafter Geneva Convention II]. See further ORAA, supra note 47, at 202-06.

50 Albeit they have been construed as giving rise to positive obligations. See, for example, on the right to life under the European Convention on Human Rights, McCann v. United Kingdom, 21 Eur. H.R. Rep. 97 (1995).

51 Unhcr Handbook, supra note 10, paras. 144-63 & Annexes V (Excerpt from the Charter of the International Military Tribunal) & VI (International Instruments Relating to Article 1(F) (a) of the 1951 Convention).

52 See Robertson, Geoffrey, Crimes Against Humanity: The Struggle for Global Justice, ch. 5 (1999)Google Scholar (on war law).

53 These are defined in common Article 2 of the 1949 Geneva Conventions. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12,1949, 6 UST 3114, 75 UNTS 31; Geneva Convention II, supra note 49; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949. 6 UST 3316, 75 UNTS 135; Geneva Convention IV, supra note 49.

54 Article 1(4) of Additional Protocol I of 1977 expanded the concept of international armed conflict described in common Article 2 of the 1949 Conventions to include such conflicts. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 UNTS 3.

55 Additional Protocol II, supra note 49, applies a limited range of international standards to situations of internal confrontation that reach a certain level of intensity. However, its obvious application to civil wars is limited by the requirement that it only cover conflicts in which the organized armed groups meet the criteria of responsible command, control over territory, and capacity to implement the Protocol.

56 For a summary and analysis of recent ICTR and ICTY case law, see Erik Møse, The Criminality Perspective, to be published in the forthcoming Proceedings of the International Association of Refugee Law Judges 2000 Conference at Bern.

57 Common Article 3 of the four Geneva Conventions of 1949 sets out the minimum conduct of each party to an armed conflict of a noninternational character in all circumstances of the conflict.

58 Article 4 of Protocol II lists guarantees for persons who do not take part or have ceased to take part in hostilities and children.

59 Article 13 of Protocol II relates to the protection of the civilian population—for example, it prohibits making civilians the object of attack.

60 Article 14 of Protocol II concerns the protection of objects indispensable to the survival of the civilian population, such as agricultural areas for the production of foodstuffs and drinking-water installations.

61 McDonald, supra note 34, at 84-85, summarizes the current law applicable in noninternational armed conflicts as consisting of common Article 3 of the 1949 Geneva Conventions, Protocol II to the 1949 Conventions, the provisions of the 1954 cultural-property convention that relate to respect for cultural property, the 1997 UN Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, the and the land mines treaty, together with the prohibitions of crimes against humanity and genocide and some customary international law.

62 App. 71, 462/99, supra note 4, of September 27, 1999, and the references therein to Adan, supra note 6, and Abdi, supra note 6.

63 Horvath v. Sec’y of State for Home Dep’t, [2000] 3 W.L.R. 379; Refugee App. No. 71,427/99 (NZ Aug. 16,2000).

64 In the Tablada case, supra note 42, the Inter-American Commission on Human Rights held that it should apply IHL because this enhanced its ability to respond to situations of armed conflict. It found that the American Convention, although formally applicable in times of armed conflict, was not designed to regulate situations of war and did not contain rules governing the means and methods of warfare. See id., para. 161.

65 See note 32 supra regarding the different approach adopted by the Australian Federal Court in Abdi from that taken by the United Kingdom in Adan with respect to the situation in Somalia.

66 E.g., Edwin Brown, Firmage, Summary and Interpretation, in The International Law of Civil War 415 (Wright, Quincy & Richard, A. Falk eds., 1971).Google Scholar

67 For discussion, see Horvath, supra note 63.

68 Ward v. Canada, [1993] 2 S.C.R. 689, 725; see also Adan, supra note 6; Zalzali v. Canada, [1991] 3 F.C. 605.

69 Ward, supra note 68, at 692.

70 See Canadian Guidelines, supra note 8. See, more recently, Shysta-Ameer Ali, supra note 6.

71 See Adan, supra note 6, Lord Lloyd of Berwick (approving Salibian, supra note 19, and an earlier English High Court judgment, Regina v. Sec’y of State for Home Dep’t, Ex parte Jeyakumaran, 1994 Imm. App. Rep. 45 (Q.B.)).

72 See text at note 19 supra; see also Adan, supra note 6.

73 For a comprehensive treatment of the exclusion clauses, see Refugee Law in Context, supra note 34.

74 Adan, supranote 6; Lazarevic v. Sec’y of State for Home Dep’t, [1997] 1 W.L.R. 1107 (C.A.) .There is not space in this article to cover wider issues raised by military-service cases. But we submit that the somewhat outmoded language employed in paragraph 171 of the UNHCR Handbook needs to be revised in the light of the considerable developments since 1979 in international humanitarian norms with a bearing on military conflicts. See Zolfagharkhani v. Canada, supra note 45, at 549; Foughali v. Sec’y of State for Home Dep’t, No. TH/00/01513 (UK Immigr. App. Trib. May 2, 2000).

75 Sec von Sternberg, Plight of Non-Combatant, supra note 8, at 190-91.

76 In re S-P, supra note 6, at 494 n.3.

77 Von Sternberg, Plight of Non-Combatant, supra note 8, at 194.

78 Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/CONF.183/9*, 37 ILM 999 (1998), corrected through July 1999 by UN Doc. PCNICC/1999/INF/3*.

79 Although the elements identify specific acts that can give rise to serious violations of IHL, such as murder, extermination, enslavement, etc., Article 7(1) makes clear that such acts can give rise to a “crime against humanity” only “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Article 7(2) defines the term “attack” as used in paragraph 1 thus: ‘“Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”

80 It does not, however, seem necessary in all circumstances for crimes against humanity to be committed with a discriminatory intent, although it is necessary for the crime of persecution as defined in the Rome Statute. See Herman, von Hebel, Crimes Against Humanity Under the Rome Statute, in Refugee Law in Context, supra note 34, at 105, 108.Google Scholar

81 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices [Protocol II], amended May 3,1996, 35 ILM 1206 (1996), to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 1342 UNTS 137, 19 ILM 1523 (1980).

82 Structural violence has been defined as “violence committed on behalf of or with the support of a social structure such as apartheid or systematic discrimination against a minority.” Children in War: A Guide to the Provision of Services—A Study for Unicef 20, UN Sales No. 93.XX.USA.2 (1993)Google Scholar, quoted in Goodwin-Gill & Cohn, supra note 8, at 32 n.23.

83 Abdi, supra note 6, para. [38].

86 Unhcr Handbook, supra note 10, para. 91. For further discussion of the IFA, see Storey, H. H., The Internal Right Alternative Test: The Jurisprudence Re-Examined, 10 Int’l J. Refugee L. 499 (1988).Google Scholar

85 App. 71,462/99, supra note 4, para. [51].

86 Unhcr Handbook, supra note 10, para. 196.

87 The U.S. State Department’s 1999 Country Reports on Human Rights Practices includes at “g” on Colombia the heading “Use of excessive force and violations of humanitarian law in internal conflicts,” which separately itemizes IHL breaches committed by the main guerrilla armies.

88 See p. 358 supra.